Monday, February 14, 2011

Regarding the "Counsel for the Situation"

Robert Gordon (Law and History, Yale) reviews Melvin Urofsky's biography, Louis Brandeis: A Life (Pantheon, 2009) in the J. Legal Educ., Vol. 60, No. 3 (Feb. 2011). The first paragraph of the extensive and incisive review is here:

The appearance of a major new biography is a sign that the career and example of Louis D. Brandeis are a continued source of fascination. And that’s as it should be. For lawyers especially, Brandeis is a progenitor and symbol of modes of law practice still worth study and emulation. Celebrated in his pre-Court years as “the People’s Attorney,” he is one of the founders of modern “public-interest” law, or lawyering in the service of reform causes, on behalf of relatively powerless and unorganized constituencies. His name has also come to stand for a distinctive style of practice, known in shorthand as acting as “counsel for the situation,” which is undergoing something of a revival in popularity as many lawyers and their clients become disenchanted with what they perceive to be excessive adversariness. As a judge, Brandeis represents a rather different constellation of qualities, sounding in a conservative key, as a counselor of “judicial restraint,” the doctrines that courts should avoid reaching Constitutional questions, decide cases on narrower grounds if possible, be hesitant (if federal) to assert federal jurisdiction, and above all, with exceptions only in egregious cases, give as wide a scope as possible to the exercise of legislative power and properly delegated administrative discretion. These prudential doctrines have some understandable attraction for liberals in a time when activist conservative judges have come once again to dominate the federal courts as they did in Justice Brandeis’s day. And finally, Brandeis as Progressive critic and reformer of the evils posed to republican politics and democratic society by concentrated business and financial interests may well seem—in the wake of the recent financial collapse and evidence of the wholesale corruption and capture of legislators and regulators by concentrated business interests—to have acquired fresh relevance.